Opinion
CA 03-02471.
Decided April 30, 2004.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered October 27, 2003. The order, insofar as appealed from, denied in part the motion of defendants Town of Eden and John H. McCarthy, individually and in his capacity as a Town of Eden Police Officer, for summary judgment dismissing the amended complaint against them.
VOLGENAU BOSSE, LLP, BUFFALO (THOMAS W. BENDER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted in its entirety and the amended complaint against defendants Town of Eden and John H. McCarthy, individually and in his capacity as a Town of Eden Police Officer, is dismissed.
Memorandum: Supreme Court erred in denying that part of the motion of the Town of Eden and Town of Eden Police Officer John H. McCarthy (collectively, defendants) seeking summary judgment dismissing the fourth, fifth, sixth and eighth causes of action against them. Plaintiff commenced this action to recover compensatory damages after a criminal information charging him with criminal impersonation in the second degree (Penal Law § 190.25) was dismissed. Plaintiff was arrested on the charge following a police investigation of complaints that he was soliciting certain sponsorships on behalf of the Eden Junior/Senior High School (School) without the School's permission.
We conclude that the only proper inference that may be drawn from the undisputed facts is that the police acted with probable cause in charging plaintiff ( see Brown v. Sears Roebuck Co., 297 A.D.2d 205, 210-211) and lacked "an intent to do harm without excuse or justification" ( Curiano v. Suozzi, 63 N.Y.2d 113, 116). Thus, the causes of action against defendants for false arrest (fourth cause of action), malicious prosecution (fifth cause of action) and abuse of process (sixth cause of action) should have been dismissed. Even assuming, arguendo, that the police were mistaken in their belief that plaintiff was acting without the School's permission, we conclude that the evidence establishes that the police "acted reasonably under the circumstances in good faith" ( Colon v. City of New York, 60 N.Y.2d 78, 82, rearg denied 61 N.Y.2d 670) by refraining from arresting plaintiff until investigating his claim that he was acting with proper authorization. "Police officers are routinely called upon to investigate allegations of criminal conduct and, in the face of conflicting versions of events, make determinations whether probable cause exists to believe that crimes have been committed" ( Orminski v. Village of Lake Placid, 268 A.D.2d 780, 782). Discrepancies encountered by the police in their investigations "may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime" ( Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285).
Defendants further established that the alleged defamatory material on which the eighth cause of action is based is substantially true. Because plaintiff failed to raise a triable issue of fact in response, defendants are entitled to summary judgment dismissing that cause of action against them as well ( see Hung Hee Lee Han v. State of New York, 186 A.D.2d 536, 537). There are no remaining causes of action against defendants, and thus we dismiss the amended complaint against them.